Check your Covenants Before You Sue

Here’s a quick note about Homeowner’s Associations, enforcement of Property Covenants, and liability for attorneys’ fees and costs.

In 1992, William and Carolyn Riss bought a lot in Mercia Heights,in King County.  They provided the local Homeowner’s Association with their plan to remove the current home and build a new one.  The Homeowner’s Association rejected the plans, saying they did not comply with the development’s restrictive covenants.  The Risses sued the Association and won.  The Association appealed and lost.  The case is listed as Riss v. Angel, 80 Wn. App. 553 (1996).

In Riss, the covenants provided for minimum square footage, height and setback restrictions.  They also said the Association had the right to reject the design, finishing or painting of any construction that was unsuitable for any reason.  The Riss’ plans met the covenants’ height, setback and square footage requirements.  Despite this, the Association disapproved of the plans based upon the bulk of the building, its height and on its setback.  The Court made short work of the Association’s arguments.

First, the Court stated what the applicable rules were.  In covenant cases, the Court will carefully examine the covenants to determine the intent of the parties.  Any conflicts or ambiguities will be construed against the person who drafted them.

Using those rules, the Court found the minimum setback, height and square footage standards were clearly stated.  The Court further found that the right to disapprove for any reason must be “read in conjunction with the maximum height, setback and minimum square footage requirements.”  Riss at page 558.  That clause did not give the Association blanket power to reject any plan for any reason.  Finally, the Court held that the Association acted unreasonably in trying to impose new requirements beyond those already expressed in the covenants.  Thus, as long as the Riss’ house met the clearly stated requirements they could build.

Riss is interesting for two reasons.  First, the Court went out of its way to interpret these Covenants favorably to the individual homeowner.  By doing so, it limited the power of the Homeowner’s Association, which seemed to be acting in an arbitrary fashion.  Second, the Court imposed attorney’s fees against the losing party – the Association’s individual members.  Because the Association was not a corporation, the Court imposed liability among all of its members who were part of the lawsuit.  The liability was joint and several, meaning each household was responsible for a portion of the fees or the entire amount if no one else paid.

To summarize, carefully read your Association’s Covenants.  If they are ambiguous or vaguely worded, amend them.  Do not wait until someone is in the middle of the design review process to do so.  If forced to sue, check the legal status of your Association to determine if fees could be assessed against it, or against individual members.

Published May 1996

This article contains information of general interest, and is not intended to be, nor should it be relied upon as a substitute for specific legal advice.